Article excerpt

David W. Machacek is resident fellow at the Greenberg Center for the Study of Religion in Public Life and a visiting professor of public policy at Trinity College, both in Hartford, Conn. Along with Phillip E. Hammond and Eric Michael Mazur, he co-authored Religion On Trial: How Supreme Court Trends Threaten Freedom of Conscience in America (Altamira Press, 2004).

The book is highly critical of the church-state views of Supreme Court Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas. Machacek recently discussed his views with Church & State.

Q: Your book, Religion On Trial, says the high court is headed in the wrong direction and that religious liberty is in jeopardy. What's the basis for your concern?

A: Over the course of the 20th century, religious minorities increasingly sought and found refuge in the courts against laws that restricted their freedom. Under the First Amendment, the Supreme Court found, laws that burdened the free exercise of religion had to be justified by a legitimate and compelling state interest (such as protecting the public safety) that could not be accomplished without burdening the free exercise of religion. In 1990, the Supreme Court reversed course, saying that as long as the law is "facially neutral" towards religion--that is, it doesn't explicitly target a particular religious group or practice--the state does not have to justify legal burdens on the free exercise of religion.

Q: In the book, you say that Rehnquist, Scalia and Thomas favor a kind of majority rule in religious matters. What's the evidence for that?

A: What these justices want is greater deference by the court to democratically enacted legislation, generally. But the entire purpose of the Bill of Rights was to put certain fundamental rights beyond the reach of voting majorities. As James Madison had learned from his experience in Virginia, the popular vote is a poor safeguard for religious liberty.

Q: You credit James Madison with being the most influential founder when it comes to religious liberty What would he think of the Scalia/Rehnquist/Thomas approach to religious liberty?

A: It must be acknowledged that Madison was responding to a very different social and political context than we know today. The federal government now plays a much greater role than it did during his time, and the population of the United States is much more diverse culturally and religiously. One of the problems with the argument that the court should be bound to the "original intent" of the Founders, which these justices fondly invoke, is the idea that the solutions they proposed to the challenges they faced are adequate to resolve the challenges we now lace. The revise-ability of our laws--the ability to propose new solutions to new challenges unencumbered by the authority of tradition--is part of the brilliance of the American constitutional system.

We know, however, that Madison consistently argued for the freedom of conscience in its fullest latitude. We know that he hoped that experience would lead Americans toward the realization of a more perfect freedom of conscience; that he celebrated evidence that Americans were moving in this direction and expressed disappointment whenever he saw government meddling in religious affairs. …